Beardslee v. Boyd

• Decision Date: 31 January 1866
• Citation: 37 Mo. 180
• Parties: CHARLES BEARDSLEE et al., Respondents, v. S. H. BOYD et al., Appellants.
• Court: Missouri Supreme Court

37 Mo. 180

CHARLES BEARDSLEE et al., Respondents,

v.S. H. BOYD et al., Appellants.

Supreme Court of Missouri.

January Term, 1866.

Appeal from Greene County Circuit Court.

T. A. Sherwood, for appellants.

An attorney is not liable for money collected until demand made upon him. (Cummins v. McLean, 2 Pike. 402; Rathburn v. Ingalls, 7 Wend. 320; Taylor v. Bates, 5 Cowen, 376; S. P. Ferguson's case, 6 Cowen, 596; Staples v. Staples, 4 Greenl. 533; Satterlee v. Frazier, 2 Sandf., S. C. 141; Cooley v. Betts, 24 Wend. 203; Armstrong v. Smith, 3 Blackf. 251; 3 Mo. 316; 9 Mo. 688; 16 Mo. 525; 18 Mo. 375.) An attorney after the reception of money is only a mere bailee, and no recovery can be had against him until a demand is shown. (Ross v. Clark et al., 27 Mo. 549, and cases there cited.) There are but three things which will dispense with the necessity of a demand: 1. A denial of agency; 2. A promise to remit, and a failure to do so; 3. Setting up an offset exceeding the client's claim. In this case there was no evidence of a demand, nor of anything which could possibly dispense with, or constitute a waiver of, it.

The judgment should have been arrested. The petition does not state facts sufficient to constitute a cause of action. (Jaccard v. Anderson, 32 Mo. 188.) It shows no liability on the part of the appellant. It seeks to charge him with the reception of money as an attorney, and yet it does not contain the necessary averments to this end. It does not allege that any demand was made on Boyd for the money, or that he refused to pay over said money, or that any acts were done by him equivalent to a refusal, or to a waiver of demand. In the language of one of the authorities above cited, “It would be unjust, and contrary to the implied contract between the parties, in cases like the present, to subject the agent to a suit for the money collected by him for his principal, without a previous demand.”

LOVELACE, Judge, delivered the opinion of the court.

This is an action for money had and received by the defendants. The petition states in substance that the defendants owe the plaintiffs the sum of four hundred and ninety-eight dollars and fifty-five cents, with ten per cent. interest per annum from the second day of September. 1859, for money had and received by the defendants; which said money was collected by said defendants as attorneys for plaintiff in a certain cause wherein Charles Beardslee and others were plaintiffs, and James M. Morgan was defendant, in the Circuit Court of Greene county, Missouri, and which said sum the defendants have wholly failed and refused to pay plaintiffs, and for which they ask judgment, &c. The defendant Boyd answers, denying any knowledge or information sufficient to form a belief as to whether he had received the money, and also claiming a set-off of one hundred and seventy-five dollars for legal advice and services in a certain case in which these plaintiffs were plaintiffs, and one James Morgan was defendant.

The facts disclosed by the evidence are substantially these: These plaintiffs, in 1859, commenced a suit by attachment against James M. Morgan; that suits were commenced at the...